Ky. 271, 90 S. W. 600, it appeared that some of the creditors had reduced their claims to judgment, and had levied execution upon the heir's interest in the property.

This, however, does not seem to have been considered of controlling importance, the court saying that if an heir connives with others, or by his own act alone has a spurious will presented for the probate, or acquiesces in the probating of such, whereby a fraud would be worked upon his creditors, his creditors, even though their claims are not reduced to judgment, ought to be allowed to contest the probating at their own cost, since they are parties interested in the probate within the meaning of the statute authorizing any person "interested in the probate of a will" to prosecute an appeal to the circuit court. The court, in presenting the reason for this holding, said: "If the heir is insolvent, and is attempting to have or suffer his property disposed of to his children or others, so that his creditors will be defeated, it is a fraud upon the creditors, which they are entitled to resist in the only forum and proceeding where resistance would avail them any good. They are 'interested in the probate,' in the language of the statute." The ground of attack was that the paper probated as a will was not in fact decedent's will, as he had revoked it before his death.

The right of a judgment or attachment creditor of an heir to contest the alleged will has been upheld in some cases. Brooks v. Paine (1906) 123 Ky. 271, 90 S. W. 600; Mullins v. Fidelity & D. Co. (1907) 30 Ky. L. Rep. 1077, 100 S. W. 256; Smith v. Bradstreet (1833) 16 Pick. (Mass.) 264; Re Langevin (1891) 45 Minn. 429, 47 N. W. 1133; Watson v. Alderson (1898) 146 Mo. 333, 69 Am. St. Rep. 615, 48 S. W. 478; Bloor v. Platt (1908) 78 Ohio St. 46, 84 N. E. 604, 14 Ann. Cas. 332; Re Coryell (1896) 4 App. Div. 429, 39 N. Y. Supp. 508. And see Komorowski v. Jackowski (1916) 164 Wis. 254, 159 N. W. 912.

This holding was followed in Mullins v. Fidelity & D. Co. (1907) 30 Ky. L. Rep. 1077, 100 S. W. 256, where

judgment creditors of the heir were allowed to defeat the probate of the alleged will by invoking the Statute of Limitations against probate.

And in Davies v. Leete (1901) 111 Ky. 659, 64 S. W. 441, while it was held that a purchaser of property from an heir apparent was a "person interested" within the meaning of the statute, the court said: "We are of the opinion that any person who claims title under anyone an heir at law of the testator, as well, perhaps, as any creditor of such heir at law, if the heir be insolvent, may be a party to such proceedings under the above clause."

So, a judgment creditor of a devisee. at the time of the probate of a will can oppose the subsequent probate of a codicil which would devest him of his lien, under a statute providing that "any person . who is named as

devisee or legatee in the will propounded, or as executor, trustee, devisee, or legatee in any other paper purporting to be the will of the decedent, or who is otherwise interested," may oppose the application notwithstanding another statute which provided that the expression, "person interested," when used in connection with any estate, includes every person entitled, either absolutely or contingently, to share in the estate or the proceeds thereof as husband, wife, legatee, next of kin, heir, devisee, assignee, grantee, or otherwise except as creditor. Re Coryell (1896) 4 App. Div. 429, 39 N. Y. Supp. 508. The grounds of the contest do not appear.

In Seward v. Johnson (1905) 27 R. I. 396, 62 Atl. 569, the court recognized that the creditor of the heir had sufficient pecuniary interest to be entitled to a standing in court as a party interested in matters of probate or probate appeal, and held that a creditor of an heir who attaches the interest of the heir at the death of the testator loses his right to a standing in court as a party interested in matters of probate, or probate appeal, by standing idly by while a will is being contested, until a compromise is entered into by the parties to such contest, and the will admitted to probate.

In Komorowski v. Jackowski (Wis.)

supra, holding that where a creditor of an heir, who had levied upon the heir's interest in the real estate and purchased such interest at an execution sale, stood in the shoes of his debtor sufficiently to be heard in the probate proceedings, the ground of attack was that the instrument offered as a will was a forged document.

Thus, in Smith v. Bradstreet (1833) 16 Pick. (Mass.) 264, it was held that the interest of a general creditor was too remote and contingent to make him an aggrieved party, but when it later appeared that the creditor had attached the property the court held that he was entitled to prosecute his appeal. The ground of appeal was lack of testamentary capacity. Shaw, Ch. J., said: "His [attaching creditor] title depends upon proof of the will. An attachment constitutes a lien, a real interest in the land, which may be followed up to a perfect title. If the will is proved, it defeats this title; if rejected, it establishes it. The trial of this fact, in the probate court, is conclusive upon this question, and the appellant has no other time, place, or forum to try it in."

And this distinction between a general creditor and a judgment creditor was recognized in Re Langevin (1891) 45 Minn. 429, 47 N. W. 1133, in which it was held, under a statute providing that "all persons interested" may contest the probate of a will, that a creditor who holds a judgment against an heir of one dying seised of real estate which, in the absence of a will, would pass to his heir, has an interest that entitles him to contest the probate of a purported will, since the will, if probated, would defeat the lien of his judgment, the court saying: "The interest which shall entitle one to oppose the will must be an interest in the real estate to be affected by it, which the law will recognize." The attack on the purported will was on the ground of undue influence. The court observed that "the probate of a spurious will would conclusively unseat the liens."

Likewise, in Watson v. Alderson (1898) 146 Mo. 333, 69 Am. St. Rep. 615, 48 S. W. 478, where the creditor

had secured a judgment, levied execution upon the heir's interest in the property, and purchased it at an execution sale, the court, following the same line of reasoning as Smith v. Bradstreet (Mass.) supra, held that the creditor was a "person interested in the probate of any will," within the meaning of the statute providing that any party interested may contest the validity of a will. The court recognizes this distinction by saying: "It is conceded on all hands that one who is simply a creditor of an heir of a deceased person has no direct and immediate interest in the devolution of the estate of the deceased; whatever interest he may have must necessarily be consequential, contingent, and remote." The court made a somewhat extended argument in support of its decision sustaining the right of a judgment creditor to attack the will, and after quoting the above passage from the opinion of Shaw, Ch. J., in Smith v. Bradstreet (Mass.) supra, said: "The logic of this position is unanswerable. The interest of such creditor in the probate of such a will is identically the same in character as that of the heir at law, and no argument can be made depriving him of the right to contest the will on the score of want of interest that would not deprive the heir at law of the same right. Descent is cast, and a will takes effect, by relation, at the moment of the death of the testator; neither heir nor devisee prior to that moment had any interest in the estate of the deceased. A lien creditor whose lien attaches the moment that title is vested in his debtor by descent cast, although by virtue of his lien judgment he had no interest in the estate of the deceased, has the same direct and immediate interest in the probate of a will by which that title would be devested that an heir at law has. It is not interest in the estate of the deceased that authorized any person to contest a will under the statute, but interest in its devolution-in the probate of a will that determines that devolution." The grounds of attack were that the instrument was not made and published as required by the law

of wills, lack of testamentary capacity, and undue influence.

The cases involving the right of the receiver of an heir or his trustee to contest the will have denied that right. Thus, the receiver of the property of a debtor appointed in supplementary proceedings instituted by his creditors is not entitled to contest the probate of the will of the debtor's wife, devesting the husband of all right in her property, as a person interested. Re Brown (1888) 47 Hun (N. Y.) 360. But see Re Coryell (1896) 4 App. Div. 429, 39 N. Y. Supp. 508, supra, in which, in referring to the Brown Case, the court makes the distinction between compelling a debt

or to acquire property enough to satisfy his creditors, and disabling the creditor to protect a lien he has already acquired upon his debtor's property.

The decision in Re Beinhauer (1922) 118 Misc. 527, 193 N. Y. Supp. 758, affirmed without opinion in (1922) 202 App. Div. 747, 194 N. Y. Supp. 917, holding that the trustee in bankruptcy was held not to be a "person interested" so as to entitle him to object to the probate of the codicil of a will, was upon the ground that as the testatrix died after the adjudication of bankruptcy, the interests of the bankrupts in her estate would not, in any event, have vested in the trustee.

Evidence, § 425 possession of note proof of indorsement.

2. Possession of such a note, so indorsed, is prima facie evidence that the same was indorsed by the person purporting to have indorsed it, and shall be proof that it was so indorsed until such person shall deny the signature or execution by his oath or affidavit.

Evidence, § 165 presumption as to authority to indorse.

3. Where such indorsement purports to have been made by authority of the payee, there is no presumption of want of such authority, where it is

Headnotes by QUINN, J.

for appellant.

Messrs. Smith & Rietz, for respondent:

The notes in question were admissible in evidence.

National City Bank v. Zimmer Vacuum Renovator Co. 132 Minn. 211, 156 N. W. 265.

The rubber stamp indorsement stands upon the same footing as does a written indorsement, and a written indorsement standing alone, without proof of who wrote it, or that it is the signature of the officer, is sufficient.

First Nat. Bank v. Loughed, 28 Minn. 396, 10 N. W. 421; National Bank v. Mallan, 37 Minn. 404, 34 N. W. 901; First Nat. Bank v. Compo-Board Mfg. Co. 61 Minn. 274, 63 N. W. 731; Flanders v. Snare, 37 Pa. Super. Ct. 28; National City Bank v. Zimmer Vacuum Renovator Co. supra; State Sav. Bank v. Krug, 108 Kan. 108, 193 Pac. 899.

Quinn, J., delivered the opinion of the court:

Two actions brought by plaintiff against the Liberty State Bank of St. Paul et al. were tried together. The court directed a verdict in each case in favor of the plaintiff. From orders denying separate motions for new trials, defendant Liberty State Bank appealed.

Respondent contends that, in May, 1921, it purchased from appellant a series of ten promissory notes, of $120 each, dated May 14, 1921, signed by George W. Delaney and indorsed by C. F. Cole Company and the appellant bank, for which it paid appellant $1,200. It further contends that, in August of the same year, it purchased from appellant two promissory notes of $700 each, which were signed by C. F. Cole Company and indorsed by appellant, for which it paid appellant $1,400. By the terms of such notes, demand, notice, and protest were waived, and each was indorsed before delivery to respondent by appellant by means of a rubber stamp as follows:

"Pay to the order of any bank, banker or trust company. "Liberty State Bank, St. Paul, Minn. J. D. Barr, Cashier." Four of the serial notes and one of the $700 notes were paid. One action is upon the six unpaid serial notes; the other upon the unpaid $700 note. At the trial the respondent produced and offered in evidence all of the notes sued upon, except one serial note, which it claimed had been sent to appellant for collection and never returned or accounted for in any manner by it, upon the theory that the production of such notes, so indorsed, creates a legal "presumption that the indorsements were by the bank and placed there by persons having authority so to do and admissible in evidence under the provisions of § 9887, Gen Stat. 1923, unless the signature and execution are put in issue by the answer in the manner provided for by the statute.

Appellant contends that the statute has no application because the validity of the indorsement had been specifically denied in the verified answer, and objected to the introduetion of the notes in evidence without proof that the indorsements had been placed on the notes by someone having authority to represent the bank. Appellant also offered to show that the notes were never the property of the bank. The proffered testimony was excluded.

Appellant's answers contain a statement to the effect that defendant has no knowledge or information as to the execution or transfer of the promissory notes therein referred to. The verification is by the cashier in the common form generally used to verify a pleading; that he has read the pleading and knows the contents thereof; and that the same are true of his own knowledge, except as to those matters therein stated on information and belief,